Jurisdiction and Complementarity

Author:Ben Brandon
Pages:17-34

Page 17

Introduction

For many of us familiar with domestic criminal justice systems in common law countries, the term 'jurisdiction' has a limited meaning. It is a term rarely used in day-to-day practice. Unless you work or practice in a country organised along federal lines, or have experience of international criminal law, the meaning of jurisdiction is usually confined to a discussion of the authority of a court or tribunal to adjudicate over a particular offender or offence. In international criminal law, however, the term often has multiple and inter-linked meanings, which this chapter sets out to disentangle and explain.

Under international law, jurisdiction has been described as having three constituent elements or powers: the power to prescribe, the power to adjudicate and the power to enforce.1

1 Prescriptive jurisdiction is the power of States to make law and to determine the reach of that law.

2 Adjudicatory jurisdiction is a term used to describe the ability to subject a person (or thing) to proceedings in a court of law, which adjudicates upon issues brought before it by parties who have the standing to do so.

3 Enforcement jurisdiction reflects the power of a State to compel compliance with its laws and to redress non-compliance, whether through the courts or the executive, within the jurisdictional reach afforded to either institution by the prescriptive power of the State's law-making institutions.2

These powers are reserved to States and are used to preserve peace within the territory of a State and provide a degree of protection and security for its nationals and their private property from both internal and external threats.

Having described what the constituent elements of jurisdiction are, it is then necessary to understand where, and over whom, jurisdiction can be exercised. We are primarily concerned with the exercise of criminal jurisdiction over individuals (since criminal liability, both at a domestic and international level, usually attaches to an individual rather Page 18 than a group).3 An additional factor to take into account is the nature of the alleged crime and, in particular, whether it is an international crime.

Where a State, through its law officers or courts, exercises jurisdiction over a crime committed entirely in its own territory by one of its nationals, there is rarely any need to resort to international law and consider applicable principles of jurisdiction. However, the growth of mass transit and global commerce, together with the spread of international crime, has meant that States increasingly seek to exercise jurisdiction beyond their own borders. In doing so, they must have regard to what is permitted in international law, which has developed principles of jurisdiction to ensure that the exercise of domestic penal authority does not conflict with the general desire for harmony and order in the relations between States. Throughout this discussion of different and differing theories of jurisdiction, it is important to bear in mind that a balance must be struck between a State's interest in the offence, and the interests of other States in the offence.

States bring persons accused of having committed crimes before domestic courts under one of the four generally recognised principles of jurisdiction in international law: (1) territoriality, (2) active nationality, (3) passive nationality and (4) universal jurisdiction. Many States rely on more than one principle of jurisdiction in their administration of justice, depending on the nature of the crime alleged to have been committed.

2 Principles of Jurisdiction
2. 1 The territorial principle

Until relatively recently, the majority of States only asserted jurisdiction over criminal acts when such acts were said to have been committed on their own territory. Crimes committed abroad were a matter for the forum State (i.e. the State where they occurred). This was particularly true of States that inherited the English common law approach, as articulated by Viscount Simonds in Cox v. Army Council:

"... apart from those exceptional cases in which specific provision is made in regard to acts committed abroad, the whole body of the criminal law of England deals only with acts committed in England."4

In the vast majority of criminal cases, the UK and many other Commonwealth States continue to exercise jurisdiction on the basis of the territorial principle. Territorial jurisdiction is certainly consistent with two important rules or 'peremptory norms' of Page 19 international law [jus cogens),5enshrined in the Charter of the United Nations: (1) the equality of sovereign States and (2) the principle of non-intervention.6

The relationship of these two rules to the question of criminal jurisdiction was considered by the Permanent Court of International Justice at The Hague in the Lotus Case (1927).7The Court held that:

The first and foremost restriction imposed by international law upon a State is that -failing the existence of a permissive rule to the contrary - it may not exercise its power in any form in the territory of another State. In this sense jurisdiction is certainly territorial; it cannot be exercised outside its territory except by virtue of a permissive rule derived from international custom or from a convention.

Having stated this general proposition, however, the Court then went on to find that international law did not prohibit States from extending the application of their laws and the jurisdiction of their courts to persons, property or acts outside their territory, and indeed allowed a wide measure of discretion to do so. As a consequence, it found that:

"Though it is true that in all systems of law the principle of the territorial character of criminal law is fundamental, it is equally true that all or nearly all the systems of law extend their action to offences committed outside the territory of a State which adopts them, and they do so in ways which vary from State to State. The territoriality of criminal law, therefore is not an absolute principle of international law, and by no means coincides with territorial sovereignty."

The obiter dicta8 of the Lotus Case cleared the path for more contemporary assertions of jurisdiction by States, which are explored in greater detail below. But the attraction of criminal justice systems based on the territorial principle of jurisdiction remains.

*First and foremost, exercising jurisdiction by taking action in the territory of another State (for example, by arresting a suspect without the knowledge of the host State) not only potentially falls foul of international law but may present a threat to the stability of the international legal order. Page 20

*Secondly, there are sound practical reasons for investigating and prosecuting crimes in the territory of the State where the offence was committed, including the availability of witnesses, a common language and a shared culture of justice. There is a degree of predictability and consistency in the administration of justice, as well as a reduced danger of exposing the same person to multiple proceedings in different jurisdictions.9

However, there are also disadvantages to the territorial model. It is best suited to simple crimes committed in one jurisdiction. The greatest threats posed to international peace and security by criminals and the organisations to which they belong are terrorism, drug trafficking, human trafficking, financial crime and money laundering. These crimes are often committed in multiple jurisdictions, with different elements of the criminal act occurring in different countries and time zones. The law-making institutions of many States have responded to these threats by developing new and innovative approaches to the problem of jurisdiction that do not rely to the same extent on a link between the territory of the State and the crime committed.

UK lawmakers, for example, have responded to the threat of international crime by creating new offences that are justiciable in English courts, even though part or all of the criminal act complained of takes place outside UK territory. For instance, Part 1 of the Criminal Justice Act 1993 allows offences of dishonesty to be tried in the UK provided that any of the relevant events (being acts or omissions necessary to prove the commission of a criminal offence) occurred in England or Wales.10

2. 2 The principle of active nationality

Some States have always asserted jurisdiction over their nationals if they commit crimes, regardless of where the crime is committed. This principle is usually subject to the double criminality rule, in that the act must be proscribed in both the territory of the State that asserts jurisdiction over its national and the territory of the State where the crime is said to have been committed.

States that rely on the active nationality principle in asserting jurisdiction over crimes committed by their nationals also tend to exhibit a reluctance to extradite their nationals when called upon to do so by the State in whose territory the crime was committed. Indeed, in some instances there may be constitutional prohibitions that prevent the extradition of nationals. The corollary of such a prohibition is that provision must be made in the laws of the enforcing State to prosecute its citizens, even when the crime was committed abroad. Page 21

Certain States assert...

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